Citation Nr: 0004696
Decision Date: 02/23/00 Archive Date: 02/28/00
DOCKET NO. 98-10 322A ) DATE
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THE ISSUE
Whether a February 1998 decision of the Board of Veterans'
Appeals (Board) denying service connection for the cause of
the veteran's death and accrued benefits should be revised or
reversed on the grounds of clear and unmistakable error
(CUE).
ATTORNEY FOR THE BOARD
John Kitlas, Associate Counsel
INTRODUCTION
The veteran had recognized guerilla service from March 1945
to July 1945, and had regular Philippine Army service from
July 1945 to April 1946. Additionally, the service
department certification on file lists the veteran as having
been missing from January 1944 to March 1945.
The veteran died in January 1995. The moving party is his
surviving spouse, and was the appellant in the February 1998
Board decision.
This matter comes before the Board based on a CUE motion as
to the Board decision of February 18, 1998, which denied the
claims of service connection for the cause of the veteran's
death, and accrued benefits. At the time of the Board's
denial of the moving party's motion for reconsideration in
June 1998, the Board advised the moving party that it would
also consider her motion as a request for revision of the
Board's February 18, 1998, decision on the grounds of CUE.
Thereafter, in a letter dated in April 1999, the Board
advised the appellant that in view of the new regulations
concerning CUE, the Board would not consider the motion for
reconsideration as a CUE motion unless she informed the Board
in writing that she wished for the Board to do so.
The record reflects that the Board received correspondence
from the appellant in June 1999 in which she specifically
referred to the Board's April 1999 letter, and presented
additional arguments in support of her claim. Accordingly,
as the appellant made specific reference to the communication
in which she was specifically advised that she had to inform
the Board that she wished to proceed with a CUE review, and
presented additional argument in support of her claim, the
Board finds that she has authorized the Board to proceed with
review of her CUE motion.
FINDINGS OF FACT
The February 1998 Board decision, which denied service
connection for the cause of death and accrued benefits,
correctly applied existing statutes and/or regulations and
was consistent with and supported by the evidence then of
record.
CONCLUSION OF LAW
The February 1998 Board decision did not contain CUE. 38
U.S.C.A. § 501(a), 7111 (West 1991 & Supp. 1999); 38 C.F.R.
§ 20.1403 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Background. The provisions of 38 C.F.R. § 20.1403, set forth
what constitutes CUE and what does not, and provide as
follows:
(a) General. Clear and unmistakable error is a very specific
and rare kind of error. It is the kind of error, of fact or
of law, that when called to the attention of later reviewers
compels the conclusion, to which reasonable minds could not
differ, that the result would have been manifestly different
but for the error. Generally, either the correct facts, as
they were known at the time, were not before the Board, or
the statutory and regulatory provisions extant at the time
were incorrectly applied.
(b) Record to be reviewed.-
(1) General. Review for clear and unmistakable error in
a prior Board decision must be based on the record and
the law that existed when that decision was made.
(2) Special rule for Board decisions issued on or after
July 21, 1992. For a Board decision issued on or after
July 21, 1992, the record that existed when that
decision was made includes relevant documents possessed
by the Department of Veterans Affairs not later than 90
days before such record was transferred to the Board for
review in reaching that decision, provided that the
documents could reasonably be expected to be part of the
record.
(c) Errors that constitute clear and unmistakable error. To
warrant revision of a Board decision on the grounds of clear
and unmistakable error, there must have been an error in the
Board's adjudication of the appeal which, had it not been
made, would have manifestly changed the outcome when it was
made. If it is not absolutely clear that a different result
would have ensued, the error complained of cannot be clear
and unmistakable.
(d) Examples of situations that are not clear and
unmistakable error.-
(1) Changed diagnosis. A new medical diagnosis that
"corrects" an earlier diagnosis considered in a Board
decision.
(2) Duty to assist. The Secretary's failure to fulfill
the duty to assist.
(3) Evaluation of evidence. A disagreement as to how
the facts were weighed or evaluated.
(e) Change in interpretation. Clear and unmistakable error
does not include the otherwise correct application of a
statute or regulation where, subsequent to the Board decision
challenged, there has been a change in the interpretation of
the statute or regulation.
38 C.F.R. § 20.1403. (Authority: 38 U.S.C.A. § 501(a),
7111).
The Board further notes that with respect to the final
provisions of the regulations pertaining to the adjudication
of motions for revision or reversal of prior Board decisions
on the grounds of CUE, the definition of CUE was based on
prior rulings of the United States Court of Appeals for
Veterans Claims (known as the United States Court of Veterans
Appeals prior to March 1, 1999, hereafter "the Court"). More
specifically, it was observed that Congress intended that the
Department of Veterans Affairs (VA) adopt the Court's
interpretation of the term "CUE." Indeed, as was discussed
in the notice of proposed rulemaking (NPRM), 63 Fed. Reg.
27534, 27536 (1998), the sponsor of the bill that became the
law specifically noted that the bill would "not alter the
standard for evaluation of claims of CUE." 143 Cong. Rec.
1567, 1568 (daily ed. April 16, 1997) (remarks of Rep. Evans,
sponsor of H.R. 1090, in connection with House passage).
The Board also notes that the final regulations governing the
adjudication of CUE motions additionally provide that the
motion must set forth clearly and specifically the alleged
CUE, or errors, of fact or law in the Board decision, the
legal or factual basis for such allegations, and why the
result would have been manifestly different but for the
alleged error. 38 C.F.R. § 20.1404(b).
38 C.F.R. § 20.1404(b) further provides that:
Non-specific allegations of failure to follow
regulations or failure to give due process, or any other
general, non-specific allegations of error, are insuffi-
cient to satisfy the requirement of the previous
sentence. Motions which fail to comply with the
requirements set forth in this paragraph shall be
denied.
In the February 1998 decision, the Board found that veteran
died in January 1995 at the age of seventy-nine years, and,
according to his death certificate, cardiopulmonary arrest
was the immediate cause of death, a probable myocardial
infarction was the antecedent cause, and essential
hypertension was a significant condition that had contributed
to death. It was noted that the death certificate was
certified by a Dr. "G" who reported that she had not
attended the deceased. Based on review of the evidence of
record, the Board found that at the time of the veteran's
death, service connection was not in effect for any
disability; and that there was no credible evidence linking
the veteran's death to his recognized military service during
World War II.
The Board considered the assertions of the appellant that
various ailments that plagued the veteran while he was in the
military led to declining health and, ultimately, his death.
However, in support of its denial, the Board noted that
service medical records revealed that all systems were
clinically evaluated as normal upon examination in April
1946, shortly before the veteran's separation from service.
It was also noted that the veteran reported in his March 1946
Affidavit for Philippine Army Personnel that he had not
sustained any wounds or illnesses from December 1941 to the
date of return to military control.
The Board noted that there were records on file which
indicated that the veteran was treated for malaria, and
myocardia ischemia with essential hypertension, while in the
military. However, a review of these documents showed that
this treatment occurred after the veteran's period of
recognized service. For example, a medical record dated in
November or December of an unspecified year indicated that
the veteran contacted malaria in the line of duty. However,
this record indicated that the veteran was thirty-years-old
at the time. It was noted that the veteran reported in his
March 1946 affidavit that he was born in 1918, and that the
moving party had contended that the veteran was born in 1917.
Regardless, the veteran would not have been thirty-years-old
during his period of recognized service. The Board also
noted various statements from the Philippine National Police
Medical Service Unit which indicated treatment for
cardiovascular abnormality, and myocardia ischemia with
essential hypertension, beginning in 1966, which was after
the period of recognized service.
The Board also noted that a private medical statement was on
file from Dr. G, dated in September 1995. In this statement,
Dr. G reported that the veteran's cause of death had been
atherosclerotic hypertensive disease, from which he had been
suffering for a number of years. It was noted that he had
contracted the disease while in military service. However,
the Board found that there was no indication that Dr. G.
physically examined the veteran prior to his death or
reviewed his medical records. For example, Dr. G. had
certified the veteran's death certificate, at which time she
reported that she had not attended the deceased. The Board
also noted that the appellant had provided the authorization
and consent forms for the RO to obtain evidence from the
medical sources who had treated the veteran during his
lifetime, and that the RO sought to obtain all outstanding
records. Nevertheless, no records were obtained of any
treatment that Dr. G. provided the veteran prior to his
death. Thus, the Board stated that it appeared that the Dr.
G.'s statement that the veteran "had contracted the disease
while in military service" may have been based on
information provided by the appellant. The Board determined
that, as a layperson, the appellant was not competent to
render opinions as to diagnosis and etiology, citing to
Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Furthermore,
the Board stated that it appeared that the veteran may have
had additional Philippine "military service" after his
recognized active service.
Analysis. In her May 1998 motion, the moving party listed
several points of disagreement with respect to the February
1998 decision. She took exception to the dates of the
veteran's period of recognized service, particularly the
period for which the veteran was listed as missing. In
support of this contention, she pointed to a September 1996
joint affidavit from two of the veteran's comrades, written
statements made by the veteran, a March 1961 statement from
the Armed Forces of the Philippines, and "Special Order
#54" dated in November 1941. The moving party also asserted
that service connection was in effect, per the September 1996
joint affidavit. Furthermore, she reiterated her contention
that various ailments that plagued the veteran while he was
in the military led to declining health and, ultimately, his
death, particularly kidney pains. She specifically pointed
to the September 1996 joint affidavit as supporting this
assertion. Additionally, she took exception to several of
the Board's findings regarding the weight of the evidence on
file, including the service medical records. Moreover, the
moving party stated that she had never talked to Dr. G.
Also, she emphasized that the veteran was a naturalized
citizen of the United States living in the Philippines, and
that he was entitled to the same benefits as other United
States citizens who served during World War II. She
requested that the benefit of the doubt be resolved in her
favor.
With respect to the veteran's period of recognized service,
the Board notes that the Court has held that "VA is
prohibited from finding, on any basis other than a service
department document, which VA believes to be authentic and
accurate, or service department verification, that a
particular individual served in the U.S. Armed Forces." Duro
v. Derwinski, 2 Vet. App. 530, 532 (1992). In addition, it
is noted that "service department findings are binding on the
VA for purposes of establishing service in the U.S. Armed
Forces." Id.; see also Dacoron v. Brown , 4 Vet. App. 115,
120 (1993). The periods of recognized service noted above,
and in the February 1998 decision, are from the service
department certification. Therefore, the various documents
to the contrary from the government of the Philippines, the
written statements from the veteran, as well as the September
1996 joint affidavit, have no bearing upon the resolution of
this matter. Furthermore, no United States service documents
were on file at the time of the February 1998 decision which
supported the moving party's claim, nor was any further
information provided at the time of the decision which would
have warranted a request for recertification. See Sarmiento
v. Brown, 7 Vet. App. 80 (1994).
As indicated above, the moving party has repeatedly referred
to the September 1996 joint affidavit in support of her CUE
motion, as well as the underlying claim of entitlement to
service connection for the cause of the veteran's death.
This joint affidavit was specifically noted by the Board in
the Factual Background portion of the February 1998 decision,
and that the two affiants reported that the veteran had
suffered from malaria, pneumonia, an ulcer, and kidney
trouble during the period from 1942 to 1945. Granted, these
contentions were not specifically addressed in the Analysis
portion of the decision. However, it was well settled at the
time of the February 1998 decision that issues of medical
diagnosis or medical causation require competent medical
evidence in order to have probative value. See Grottveit v.
Brown, 5 Vet. App 91, 93 (1993). Nothing on file showed that
either of these two affiants had the requisite knowledge,
skill, experience, training, or education to render a medical
opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494
(1992). Consequently, the September 1996 joint affidavit was
not entitled to probative value as to whether the veteran
actually had these ailments during his period of recognized
service.
The moving party has also stated that she never talked to Dr.
G. As noted above, the Board found in the February 1998
decision that it appeared Dr. G's September 1995 statement
was based on the moving party's reported history. Assuming
without deciding that it was error for the Board to make this
supposition, it is not at all clear that a different result
would have ensued if this supposition was not made. The
Board had made additional findings in the February 1998
decision which questioned the credibility of Dr. G's
statement. Specifically, the fact that Dr. G had previously
reported that she had not attended to the veteran, and the
fact that no medical records were obtained from Dr. G despite
a specific request for such records. Moreover, Dr. G
reported in her statement that the atherosclerotic hyper-
tensive disease was contracted by the veteran "while still
in military service." As indicated above, it was found by
the Board in February 1998 that the veteran appeared to have
additional military service beyond his period of recognized
service. Thus, it appears that Dr. G's statement is similar
to those received from the Philippine National Police Medical
Service Unit, which indicated that the veteran was treated
for heart problems during military service, but after his
period of recognized service.
In regard to the moving party's contentions regarding the
veteran's United States citizenship, the Board finds that
this is irrelevant to the facts of the February 1998
decision. The law and regulations pertaining to the grant of
service connection for the cause of a veteran's death are the
same for veterans who are citizens of the United States, and
for veterans who are citizens of the Philippines with
recognized service in the United States military. See 38
C.F.R. § 3.312.
The moving party has also expressed disagreement with the
Board's evaluation of the evidence of record in February
1998, including the probative value given to the service
medical records. These contentions clear go to how the
evidence was evaluated by the Board at the time of these
decisions. As stated above, disagreement as to how the facts
were weighed or evaluated has been specifically precluded as
a basis for CUE in 38 C.F.R. § 20.1403(d)(3). The moving
party points to no specific evidence that undebatably
demonstrated her entitlement to service connection for the
cause of the veteran's death.
The moving party has provided only vague, non-specific
allegations regarding the assertion that there was CUE in the
denial of accrued benefits, other than her previous
allegation that service connection was in place as shown by
the September 1996 joint affidavit. However, this joint
affidavit does not state that the veteran had been awarded
service connection for any disability during his lifetime.
Further, it was determined above that this affidavit is of no
probative value in determining whether the veteran had a
medical disability during his period of recognized service.
The moving party points to no specific evidence that
undebatably demonstrated her entitlement to accrued benefits.
The moving party has also requested that the benefit of the
doubt be resolved in her favor. However, in February 1998
decision, the Board found that the preponderance of the
evidence was against her claim of service connection for the
cause of the veteran's death. The benefit of the doubt
doctrine codified at 38 C.F.R. § 3.102 does not apply when
the preponderance of the evidence is against the claim. See
generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Regarding accrued benefits, this claim was denied as a matter
of law in the February 1998 Board decision. The Court has
held that when the law and not the evidence is dispositive, a
claim for entitlement to VA benefits should be denied or the
appeal to the Board terminated because of the absence of
legal merit or the lack of entitlement under the law.
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Since the
legal requirements for accrued benefits were not fulfilled,
the benefit of the doubt doctrine was not for application in
the accrued benefits claim either.
As far as any other basis for CUE is concerned, the Board
must emphasize that in a CUE motion, it is incumbent upon the
moving party to set forth clearly and specifically the
alleged CUE, and that non-specific allegations of failure to
follow regulations or failure to give due process, or any
other general non-specific allegations of error, are
insufficient to satisfy this requirement under 38 C.F.R.
§ 20.1404(b). Moreover, motions which fail to comply with
the requirements set forth in 38 C.F.R. § 20.1404(b), shall
be denied. Consequently, in view of the fact that the moving
party has failed to comply with 38 C.F.R. § 20.1404(b), and
that no other allegation of CUE is supported by the record,
the Board has no alternative but to deny the moving party's
motion for CUE.
ORDER
Inasmuch as the February 1998 Board decision did not contain
CUE, the CUE motion is denied.
Gary L. Gick
Member, Board of Veterans' Appeals